Porn and Condoms and Prop. 8

Most of us remember where we were when the Supreme Court issued its 2013 ruling overturning Proposition 8. It was a day of celebration, as the streets from West Hollywood to the Castro and beyond swelled with revelers filled with optimism and pride. But what many don’t remember about that day is the avenue in which marriage equality was restored to the Golden State. Rather than decide on the merits of Prop. 8 — whether the U.S. Constitution allows California to ban same-sex marriage — the justices ruled that the official sponsors of the ballot initiative lacked “standing” to defend the measure before the court. In other words, since California government officials declined to put on a defense, there was nobody left with enough of a stake to warrant review.

Federal courts in the United States are bound by the Constitution to only decide actual cases and controversies. Because the state of California — which was sued in the Prop. 8 case by same-sex couples — actually agreed with the plaintiffs, no controversy existed for the court to remedy. Prop. 8 sponsors’ hurt feelings over same-sex marriage were not enough to constitute a tangible injury, according to the justices. So with the blessing of the Supreme Court, the lower court’s 2010 opinion striking down Prop. 8 went into effect. As part of its ruling, the Supreme Court set the precedent that sponsors of ballot initiatives do not have legal standing to defend their cause in federal court. That job is left solely to the government.

Fast-forward to today, and this precedent is being tested with another issue affecting our community, and gay men in particular. In 2012 voters in Los Angeles County voted to approve an initiative known as Measure B. Sponsored by the AIDS Healthcare Foundation, Measure B, among other things, bans condomless sex in adult films.

The law is facing a robust constitutional challenge from the adult entertainment industry on First Amendment grounds. And Los Angeles County officials, the defendants named in the lawsuit, have declined to put on a defense of the measure, just as California declined to defend Proposition 8. L.A. County even went so far as to agree that the lawsuit “presents important constitutional questions that require and warrant judicial determination.” Measure B was left to languish, undefended and vulnerable, until the AIDS Healthcare Foundation — which admittedly does some valuable work otherwise — stepped in to defend it in court. Sound familiar?

Two years later, Measure B has been reviewed by two federal courts and will likely come to the doorstep of the U.S. Supreme Court within weeks. And, fresh off their ruling in the Prop. 8 case, it appears the justices will have the chance to enforce their recent precedent, tossing the AHF out of court and rightly stripping Measure B of a constitutional defense.

This is reason to celebrate. While we don’t know L.A. County’s exact reasoning for abandoning the defense of Measure B, there are a host of problems with the law. First and foremost is the egregious and unconstitutional violation of the free speech rights of adult film performers. And while supporters liken condomless sex to an occupational hazard, they forget that sexuality and sexual relations, including erotic films, are constitutionally protected by the First Amendment.

Secondly, Measure B is not grounded in science. With the advent of new therapies such as PrEP, it is debatable whether safe sex and condomless sex are mutually exclusive anymore. The antiquated idea that a condom is the sole purveyor of sexual health is an insult to everyone in the scientific community who has worked so hard to achieve success with safe-sex alternatives.

From a practical standpoint, this is a measure that affects the economy of Los Angeles and the livelihood of those employed by the adult industry, especially gay men. Up to one-third of the entire adult industry caters to gay men, and since Measure B came into force, permits for porn shoots in Los Angeles County have decreased by 95 percent. That’s a lot of lost jobs, and it’s a big ask on the part of the AHF for this community to forgo its livelihood to suit a political agenda that is misguided at best.

Hopefully all of this will spell doom for Measure B at the Supreme Court, with the only question being how the justices choose to dispose of the case. On an emotional level, here’s hoping the court tosses the measure on free speech grounds. It’s the fate this law deserves. But on a practical level, it may be more palatable for the justices to take the Prop. 8 approach and dismiss the AIDS Healthcare Foundation for lack of standing, vacate all prior rulings upholding the law, and send it back to the district court without anyone to defend it. It’s not a big win, but it’s a win. With the Prop. 8 case, everyone was hoping for the big win — marriage equality nationwide. But at the end of the day, we still got what we wanted. Let’s hope the same thing happens here.

Patrick Smith

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Written by Patrick Smith

Patrick Smith is a leatherman and political activist who started his career and advocacy work in Canada, working as assistant to the chief of staff in the Office of the Prime Minister. He came to the United States to pursue his MBA at the University of California, Los Angeles. He currently holds the title of Eagle LA Mr. Leather and is competing for the Mr. LA Leather title in March.

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